Young v. Young

Decision Date28 April 1998
Docket NumberNo. 970251,970251
Citation578 N.W.2d 111
PartiesDorothy YOUNG, Plaintiff and Appellant, v. Gene YOUNG, Defendant and Appellee. Civil
CourtNorth Dakota Supreme Court

James J. Coles of Snyder Coles Lawyers, Bismarck, for plaintiff and appellant.

James A. Reisnour of Mackenzie & Reisnour, Jamestown, for defendant and appellee.

MARING, Justice.

¶1 Dorothy Young appeals from a judgment dissolving her marriage with Gene Young, dividing the marital property, and awarding spousal support. We hold the trial court's award of spousal support is not clearly erroneous and the trial court did not abuse its discretion in denying Dorothy's request for fees and costs. We further hold the trial court's valuation of the marital property is not clearly erroneous, but that its division of the marital property is clearly erroneous. We, therefore, affirm in part, reverse in part and remand.

¶2 The Youngs were married in 1975. This was a second marriage for both of them and, although they had no children of this marriage, Dorothy's daughter from her previous marriage and Gene's son from his previous marriage lived with them until their graduation from high school. Their family resided on a farm near Edgeley where Gene made a living as a farmer and rancher.

¶3 The parties separated in November 1995. Dorothy moved to Bismarck, accepted employment as a nurse's assistant, and filed for divorce. After a hearing, the trial court granted a divorce on the grounds of irreconcilable differences, divided the marital property, and awarded Dorothy spousal support of $150 per month for five years.

¶4 Dorothy asserts the court erred in valuing the marital real estate. The trial court's valuation of property is a finding of fact which will be reversed on appeal only if it is clearly erroneous. Kluck v. Kluck, 1997 ND 41, p 25, 561 N.W.2d 263. When the trial court's valuation is within the range of evidence and we are not left with a definite and firm conviction the court has made a mistake, we will not set it aside. Hendrickson v. Hendrickson, 553 N.W.2d 215, 219-220 (N.D.1996).

¶5 Gene testified the real estate, mostly farmland, had a total value of $235,428. Dorothy hired an expert appraiser who valued the real estate at $288,260. The trial court found the value of the property was $260,000. Dorothy complains the trial court gave equal weight to Gene's testimony and the testimony of her expert appraiser.

¶6 Ordinarily, the owner of real property is presumed to have special knowledge of its value and may testify thereto without any further qualification. Anderson v. Anderson, 368 N.W.2d 566, 569 (N.D.1985). The trial court is entitled to weigh and evaluate expert testimony, and the court does not have to accept expert opinion even if it is undisputed. Matter of Estate of Aune, 478 N.W.2d 561, 564 (N.D.1991). The trial court can best evaluate testimony because it observes the demeanor and credibility of the witnesses, and we do not substitute our judgment for that of the trial court when reasonable evidence supports the findings. Fenske v. Fenske, 542 N.W.2d 98, 102 (N.D.1996). The trial court's valuation was within the range of the evidence, and we are not left with a firm and definite conviction the trial court made a mistake in valuing the real estate.

¶7 Dorothy argues the court erred in awarding her spousal support of only $150 per month for five years. The court, within its discretion, can award either party spousal support under N.D.C.C. § 14-05-24. An award of spousal support must be made in light of the disadvantaged spouse's needs and the supporting spouse's needs and ability to pay. Mahoney v. Mahoney, 1997 ND 149, p 28, 567 N.W.2d 206. Determinations relevant to spousal support awards are findings of fact which will not be disturbed on appeal unless clearly erroneous. Beals v. Beals, 517 N.W.2d 413, 416 (N.D.1994). The trial court found the parties have approximately equal annual incomes, but Dorothy "has need of support to assist her due to her reduced vision until she retires." Dorothy provides no analysis or citation of authority, and she makes no suggestion as to what would be a more appropriate spousal support award. We are not left with a firm and definite conviction the trial court made a mistake in its award of spousal support.

¶8 Dorothy argues the trial court erred in denying her request for attorney fees, expert witness fees, and costs. An award of expert witness fees and costs is within the sound discretion of the trial court and will not be disturbed on appeal unless an abuse of discretion is shown. N.D.C.C. §§ 28-26-06(5) and 28-26-10; Patterson v. Hutchens, 529 N.W.2d 561 (N.D.1995). An award of attorney fees in a divorce action under N.D.C.C. § 14-05-23, is also within the sound discretion of the trial court and will not be set aside absent an abuse of discretion. Bagan v. Bagan, 382 N.W.2d 645 (N.D.1986); Heller v. Heller, 367 N.W.2d 179 (N.D.1985). The trial court found these parties have similar annual incomes, but awarded Dorothy $150 per month rehabilitative spousal support because she has a vision disability and cannot retire for three years. Under these circumstances, we are not convinced the trial court abused its discretion in refusing to award Dorothy witness fees, costs, or attorney fees.

¶9 Dorothy asserts the trial court's division of property is clearly erroneous. In dividing the property, the trial court first determined Gene brought into the marriage a farmhouse, machinery, livestock, life insurance policies, cash, crops, and 560 acres of farmland, with a current net value of $140,005. The court also determined Dorothy brought into the marriage a checking account, an automobile, and household furnishings, valued at $22,500. The court awarded to each party specific property equivalent to the value of the premarital property that the court determined each had brought into the marriage.

¶10 Section 14-05-24, N.D.C.C., requires the court to make an equitable distribution of the marital estate. Hendrickson, 553 N.W.2d at 220. " '[A]ll of the real and personal property accumulated by the parties ..., regardless of the source' must be included in the marital estate to be divided by the trial court." Glander v. Glander, 1997 ND 192, p 10, 569 N.W.2d 262 (quoting Gaulrapp v. Gaulrapp, 510 N.W.2d 620, 621 (N.D.1994) (emphasis in original)). We have repeatedly held "[s]eparate property, whether inherited or otherwise, must initially be included in the marital estate." Gaulrapp v. Gaulrapp, 510 N.W.2d 620, 621 (N.D.1994) (citations omitted). See also Grinaker v. Grinaker, 553 N.W.2d 204, 208 (N.D.1996); van Oosting v. van Oosting, 521 N.W.2d 93, 96 (N.D.1994). We have held a trial court can only apply the Ruff-Fischer guidelines after all the assets are included in the marital estate. Gaulrapp, 510 N.W.2d at 621 (emphasis ours). The origin of the property is only one factor to consider under the Ruff-Fischer guidelines, even if the property was acquired before the marriage or inherited. Winter v. Winter, 338 N.W.2d 819, 822 (N.D.1983). We have never held that property brought into a marriage or acquired by gift or inheritance by one spouse, be irrevocably set aside to that spouse. Grinaker, 553 N.W.2d at 208. As we held in Gaulrapp, 510 N.W.2d at 621, the length of the marriage is relevant in the distribution of gifted property as part of the "equitable" division of the marital estate. Also a lengthy marriage, in general, supports an equal division of all marital assets. Glander, 1997 ND 192, p 11, 569 N.W.2d 262.

¶11 It is well-settled in our case law a property division does not need to be equal to be equitable, but a substantial disparity must be explained. See id. at p 10; Fisher v. Fisher, 1997 ND 176, p 15, 568 N.W.2d 728. "A trial court's findings on matters of property division will not be set aside on appeal unless they are clearly erroneous under N.D.R.Civ.P. 52(a), or they are induced by an erroneous view of the law." Wald v. Wald, 556 N.W.2d 291, 294 (N.D.1996) (citation omitted).

¶12 The trial court's Memorandum Opinion, dated May 2, 1997, and incorporated by reference into its findings of fact and conclusions of law, awards certain items of property to Gene as "premarital or akin to premarital property of Gene ... as such" and awards certain items of property to Dorothy "that are akin to premarital property as they are, in a sense, replacements of premarital property" and awards them "as such." It is clear from the trial court's Memorandum Opinion that it never included the "premarital" property in the marital estate. The court initially separates out this property and distributes it and then determines the net value of the marital estate listing its values of the property and the debt. This method of determining the marital estate indicates an erroneous view of the law.

¶13 In addition, the trial court's distribution of "premarital" property results in a substantial disparity of approximately $137,900 in favor of Gene in the property division. The court never explains why it made this distribution. The trial court, therefore, not only erred in its approach to establishing the marital estate, it never offered any satisfactory explanation for the substantial disparity.

¶14 We have held, if our Court can understand the factual basis upon which the trial court reached its conclusions from its findings of fact, we will not remand, but this case requires a remand for a correct application of the law and an adequate explanation of its division of this marital estate. This is especially so, because the trial court's Memorandum Opinion clearly states: "In considering all of the above Ruff-Fischer guideline factors, the court comes to the conclusion that a somewhat equal property distribution is justified." (Emphasis ours.) The trial court concludes the total net value of the marital assets is $160,870 and "[a] perfect division would yield...

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